A Quebec court has granted a temporary injunction against several residents of the Mohawk community of Kanesatake to stop the illegal dumping of contaminated soil on waterfront properties.
Quebec Superior Court Justice Benoît Emery issued the 10-day injunction Monday from a courtroom in St-Jérôme, Que., following a request from the provincial environment department. Government lawyers will return to court on Oct. 18 to seek an extension of the order.
The decision comes after the Quebec government carried out a soil-sampling operation in Kanesatake in late August, which it claims revealed that contaminated soil had been dumped on several properties along the shores of the Lake of Two Mountains. That investigation followed months of media coverage and public pressure from community members, who say illegal dumping has been a problem in Kanesatake for years.
The government’s injunction request names 17 defendants, mostly Kanesatake residents, and two excavation companies that did work on the properties where the dumping allegedly occurred.
The court document alleges the defendants committed “numerous violations” of Quebec environmental regulations on 17 waterfront properties, including cutting down trees, backfilling, depositing contaminated soil and erecting buildings on the shores of the lake. It says some of the soil samples were contaminated with hydrocarbons, and that the illegal activity is threatening fish habitat.
“The situation … has become intolerable, and it’s continuing,” government lawyer Simon Larose told the court.
In an affidavit, a government investigator says the department was told last spring that there were more than 500 trucks travelling to Kanesatake every day to dump loads of soil. But the injunction does not target the construction companies whose trucks were frequently seen transporting soil from sites around Montreal to the Mohawk territory.
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A spokesperson for the environment department said last month that the government was conducting a criminal investigation “targeting all actors involved in the issue … in particular the transporters and construction sites generating this soil.” On Monday, the spokesperson said that investigation is ongoing.
Not all of the defendants were present in the courtroom on Monday, and of those that were, only a few had legal representation. Lawyers for Jennifer Lessard and Joshua Smith-Gabriel, both residents of Kanesatake, said it wasn’t fair to lump all the defendants together, given they haven’t all been accused of the same violations.
Lessard has been accused of backfilling the shoreline on her property, while Smith-Gabriel has been accused of cutting trees along the shore. The soil on their properties was not found to be contaminated.
Lessard’s lawyer, Fadi Amine, said his client was trying to level her land so that her children could build their own homes on the property, and she was assured the soil would be clean.
“(The government lawyers) make it seem that my client and all these individuals are part of some vast conspiracy to pollute,” he said. “My client wants her family to live on the land that belongs to her. And she wants obviously that land to be clean.”
He also said Lessard stopped the work on her property last June, for reasons unrelated to the government investigation.
However, Larose said that depositing soil along the shoreline is a form of pollution even if it’s not contaminated, because loose soil will erode into the water and harm the aquatic environment.
The defendants’ lawyers also challenged the provincial government’s jurisdiction to investigate the matter. They said the Mohawk Council of Kanesatake is responsible for the environmental protection of the territory. “The minister has usurped the authority of the council by undertaking these proceedings,” said François Gottlieb, Smith-Gabriel’s lawyer. “And I think that’s in violation of the rights of the people, of the defendants in Kanesatake.”
The government lawyers argued that the question of jurisdiction can be settled at a later date.
Sonya Gagnier, a counsellor with a Quebec organization offering legal advice to Indigenous people, told the judge that many of the defendants have poor access to legal representation, but that they “are in agreement with the jurisdiction and constitutional issues raised today.”
She said the defendants will represent themselves until they can find somebody to represent them.
The inspections carried out last month revealed the defendants were using the soil to backfill along the waterfront, and in some cases then erected new buildings on the soil, the government alleges. The affidavit from the government investigator names two cannabis dispensaries that have been built along the filled-in shoreline.
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